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The Environmental Protection Agency's mercury and air toxics standards for
new coal-fired power plants are so stringent that even the best-performing
existing plants cannot meet them, energy companies that are developing five new
plants are arguing (White Stallion Energy Center LLC v. EPA, D.C. Cir.,
No. 12-1272, brief filed 7/27/12).

The companies argued in a July 27 brief that the new
source limits for mercury, particulate matter, and hydrogen chloride are so
flawed that a federal court should vacate the limits entirely.

EPA appears to agree with some of the arguments and announced July 20 it
would reconsider the standards. The agency had asked the U.S. Court of
Appeals for the District of Columbia Circuit to hold in abeyance the legal
challenges to the new source standards during the reconsideration process, but
the companies have opposed delaying the case (141 DER A-16, 7/24/12).

In December 2011, EPA issued a final rule setting numeric emissions limits
for mercury, filterable particulate matter as a surrogate for toxic metals, and
hydrogen chloride as a surrogate for acid gases (77
Fed. Reg. 9,304; 246 DER AA-1, 12/22/11).

The emissions limits for new sources are more stringent than for existing
sources, and issues specific to new plants are being litigated under an
expedited briefing schedule, separately from other issues being raised in
consolidated cases challenging the rule (White Stallion Energy Center LP v.
EPA, D.C. Cir., No. 11-1302, response filed 7/3/12).

“[M]ore than five months after EPA issued the standards and stymied
Petitioners in their efforts to commence construction of their projects (and
only after this Court granted expedited review), EPA has recognized that these
analytical flaws undermine the validity of the new source standards by
announcing the Agency will, in the future, reconsider those standards,” the
petitioners' July 27 brief said. “This Court's task in vacating the standards
should not be difficult.”

Standards Not Met.

The Clean Air Act requires EPA to set an emissions standard for new sources
that is based on emissions from the best-performing existing unit in practice.
When setting the particulate matter standard, EPA gathered six emissions tests
from the best-controlled similar coal unit, Chambers Cogeneration Boiler 2 in
Carney's Point, N.J. The agency then based the standard on the single lowest
emissions test, the petitioners said.

The agency took the same approach in setting the hydrogen chloride standard,
evaluating six tests from the best-controlled unit, Logan Generating Station
Unit 1 in Swedesboro, N.J., and basing the standard on the best result.

The standards purportedly can be met 99 percent of the time. However, the
brief points out that, in practicality, the best-performing units only met the
standard in one out of six tests.

“The other five results…show that these units would fail to meet the
applicable standards,” the brief said. “EPA never explained how a standard that
a facility failed to meet in five out of six tests can possibly reflect the
emissions performance of that facility 'in practice.' ”

Results Not Achieved in Practice.

The brief argued that the standards actually cannot be “achieved in practice”
by the best-performing unit, as the Clean Air Act requires.

Similarly, the mercury standard was based on just one test at Logan, which
was identified as the best-controlled unit. The petitioners said “that standard
also is not reflective of the emissions performance of that unit over time 'in
practice.' ”

Part of the problem is that the tests EPA used to base the standards on were
short-term tests, whereas the standards are meant to be met continuously.
Conditions change over long periods, including variations in input fuel used and
operating conditions, which could affect emissions, the brief said.

Pollution control vendors have said they cannot guarantee their equipment can
monitor and control emissions to meet such stringent standards.

“Without such guarantees, Petitioners will be unable to obtain financing for
their projects and so will be prevented from undertaking development,” the brief
said.

Pollutant-by-Pollutant Approach.

In addition, the petitioners argued against EPA's pollutant-by-pollutant
approach, under which the agency set emissions limits based on what individual
existing plants can achieve for each of the three pollutants--not based on what
one single plant can achieve for all three pollutants.

“It is as if EPA determined the 'best' baseball player by determining the
player with the highest batting average, the highest fielding percentage and the
lowest earned run average--no such player exists in reality,” the brief
said.

The petitioners urged the D.C. Circuit to vacate the standards and remand
them to EPA. They said the standards for new coal-fired power plants, overall,
“are so deficient that they cannot be fixed.”

The petitioners are White Stallion Energy Center LLC, Sunflower Electric
Power Corp, Tri-State Generation and Transmission Association Inc.,
Power4Georgians LLC, Deseret Power Electric Cooperative, and Tenaska Trailblazer
Partners LLC. They are developing five new coal-fired power plants in Texas,
Kansas, Georgia, and Utah.

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